Patterson v. Tarbell

• Citation: 26 Or. 29,37 P. 76
• Parties: PATTERSON et al. v. TARBELL et al.
• Decision Date: 28 June 1894
• Court: Oregon Supreme Court

37 P. 76

26 Or. 29

PATTERSON et al. v. TARBELL et al.

Supreme Court of Oregon

June 28, 1894

Appeal from circuit court, Baker county; Morton D. Clifford, Judge.

Action by Johnston Patterson and others against G.S. Tarbell and others. There was a judgment for plaintiffs, and defendants appeal. Modified.

M.L Olmsted, for appellants.

Wm Smith, for respondents.

BEAN J.

This is a suit to determine the right to the possession of certain surface ground included within the boundaries of both the Collateral quartz mining claim, located and owned by the plaintiffs, and the Palmer quartz mining claim, located and owned by the defendants, in Baker county, Or. There is no material controversy about the facts, and in substance they are that in February, 1891, defendant Tarbell obtained permission from the owner of the Virtue mining claim to prospect within the boundaries of said claim for new veins or lodes of mineral-bearing rock, with a view of tracing the same, if discovered, to the adjoining public land, and locating a claim thereon, and, while so prospecting, he discovered a spur or feeder, which, early in the following month, he traced to its intersection with a gold or silver bearing lode or vein of quartz or other rock, upon unoccupied public land. From that time until about the 1st of April, he continued his work at intervals for the purpose of determining the course or strike of the lead or lode discovered by him, and, in so doing, sunk or dug three pits or shafts, varying in depth from 8 to 15 feet, along the course or strike of the lode or vein. On or about the 10th of March, and soon after making the discovery, he posted some kind of a notice at the first shaft or pit dug by him, and put up some preliminary stakes, but as to the contents of the notice or the location of the stakes the record is silent. On the 2d of April, while the defendant was in Baker City, for the purpose, as he claims, of securing the services of a mineral surveyor to survey and mark the boundaries of his claim, the plaintiffs, supposing the ground to be unoccupied public land, and without any knowledge of defendant's work on the claim or rights therein, in good faith located the Collateral mining claim, by posting a notice at the shaft of the abandoned Robert Emmett mine, and marking the boundaries of their claim on the ground in the manner required by law. A few days later, the defendants, having secured the services of a surveyor, duly marked out and located a claim, 1,500 feet in length and 367 feet wide, along the lode or vein previously discovered by them, the surface of which includes about 8 acres of the Collateral claim, which disputed area embraces within its boundaries the said shafts or pits dug by defendants. The defendants subsequently made an application in the proper land office for a patent; and, an adverse claim being filed by plaintiffs, this suit was commenced by them, as required by section 2326, Rev.St., to determine the question of the right to the possession of the surface ground in dispute; and, a decree being entered in their favor in the court below, this appeal was taken.

The notice posted by the defendants and the stakes put up by them in March cut no particular figure in the case, because it is not claimed that these acts amounted to a valid location, but the contention for the defendants is that the first discoverer of a lode or vein of rock in place bearing precious metals has a reasonable time after the discovery in which to trace out and determine the direction or course of such vein or lode before locating his claim, and in the meantime is protected in his right to 1,500 feet of surface ground in length along the vein or lode, and 300 feet on either side; while plaintiffs contend that, as soon as a discovery is made, the claim must be located by marking its boundaries on the ground. In most of the mining states and territories the local rules of miners and the legislative regulations generally allow some specific time for exploration after a discovery is made before the location is required to be definitely marked on the ground, but the mining claims in question here are in no organized mining district or governed by miners' rules, nor have we any legislation upon the subject; hence the question presented must be determined by the mining laws of the United States alone. The act of congress of M y 10, 1872, declares that all valuable mineral deposits in land belonging to the United States are open to exploration and purchase, and the land in which they are found to occupation and purchase, by citizens of the United States, and those who have declared their intention to become such, under regulations prescribed by law and the local customs or rules of miners in the several mining districts, so far as such customs or rules may be applicable, and not inconsistent with the laws of the United States; that all mining claims located after the 10th day of May, 1872, may equal, but shall not exceed, 1,500 feet in length along the vein or lode, and 300 feet on either side, but no location shall be made until the discovery of the vein or lode within the boundaries of the claim located; that the locators of all mining claims shall have the exclusive right of possession and enjoyment of all surface included within the lines of their location; and that the miners of each mining district may make regulations, not in conflict with the laws of the United States or the state or territory in which the district is situated, governing the location, manner of recording, amount of work necessary to hold possession of a mining claim, subject to certain requirements, among which is that "the location must be distinctly marked on the ground, so that its boundaries can be readily traced." Rev.St. tit. 32, c. 6. By this act the government of the United States has opened to exploration

and purchased by its citizens, and those who have declared their intention to become such, the public mineral lands, and, as a reward to the successful explorer, grants to him the right to take and possess the mineral within certain prescribed limits, upon his compliance with the terms and conditions of the grant, and the local rules and regulations which terms, for the purpose of this case, are "discovery" and "location" or "appropriation." It thus appears that discovery and appropriation are both conditions precedent to the right to occupy the public mineral lands as a mining claim. The right to possession or occupation depends upon a valid location, and a location is made in this state by marking the boundaries of the claim on the ground so they can be readily traced, as provided in the act of congress, and posting a notice on the lode or vein, as required by section 3828 of Hill's Code. A location thus made carries with it a grant to the person making the same, and confers upon him the right to the exclusive enjoyment and possession of the surface ground within the boundary lines of his claim. Neither the act of congress nor the legislative regulations of this state provide any specific time...